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madhu mittal (director)     07 August 2010

whether it is order or not

in a case u/s 138 NI Act, after about 6 years, a draft equal to the face value of dishonoured cheques were given by accused. An application to get this draft was forwarded to court to get the said draft to complainant and it should not be treated as compromise and case should be decided on merit. The learned magistrate only wrote in ordersheet that the draft and application of complainant should be retained in file. No order either to give or not to give the said draft was passed. Whether it is right. And if not, what remedy complainant has to get the said draft, but at the same time does not want to compromise due to loss of time and interest and want to get decided the case on merit.


 3 Replies

Rajeshwer Rao (ADVOCATE PRACTICE)     08 August 2010

The option lies with you,

you can accept the draft and close the case as compromised


you can accept the draft without prejudice to your rights and continue  the case

madhu mittal (director)     08 August 2010

Thanks for your advice. But the problem is that draft was not given to us inspite of our application for giving the draft. The draft was put in file simply by writing in order sheet that draft as well as application regaring this should remained in file. So  what to do to get draft without prejudice to my rights and continue the case ?

JAGDISH LAL (Practising Advocate)     08 August 2010

Magistrate cannot retain the draft in case file.   But due to your refusal to compromise the magistrate passed this order.    Without complete disposal of the case the magistrate cannot order to deliver draft to complainant.   As   the magistrate was bound to decide the case on merit due to your refusal to enter into a compromise.

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